Northwest Austin Municipal Utility Distr. One v. Holder Brief Amicus Curiae American Bar Association

    No. 08-322

In  The

Supreme Court of tfje dntteti States;

N o r th w e st  A u stin  M u n ic ipa l  
Ut il it y  D istr ic t  Nu m b e r  On e ,

Appellant,
v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED
States  of  Am e r ic a , e t  a l .,

Appellees.

On Appeal from the United States District Court 
for the District of Columbia

BRIEF AMICUS CURIAE OF 
THE AMERICAN BAR ASSOCIATION 

IN SUPPORT OF APPELLEES

Of Counsel: H. Thomas W ells , Jr .
Christopher  T. Handman  Counsel of Record.
D ominic F. Perella  President

Am erican  Bar  A ssociation  
321 North Clark Street 
Chicago, Illinois 60654 
(312) 988-5000

Counsel for Amicus Curiae American Bar Association

W ilson-Epes Printing Co ., Inc. -  (202)789-0096 -  Washington, D.C. 20001



TABLE OF AUTHORITIES.......................................... ii
STATEMENT OF INTEREST...................................... 1
SUMMARY OF ARGUMENT....................................... 6
ARGUMENT................................................................... 7

I. THE RECORD JUSTIFIES RE­
AUTHORIZATION.............................................7

II. THE UTILITY DISTRICT OVER­
READS BOERNE AND IGNORES 
THE LIMITED NATURE OF THE 
SECTION 5 REMEDY..............................   17

CONCLUSION..............................................................20

TABLE OF CONTENTS
Page



11

Cases:

Bartlett v. Strickland,
— S. Ct. —, 2009 WL 578634

TABLE OF AUTHORITIES
Page

(U.S. Mar. 9, 2009)..........................   9

City of Boerne v. Flores,
521 U.S. 507 (1997)...........   passim

City of Rome v. United States,
446 U.S. 156 (1980)..........................................18

Kimel v. Florida Bd. of Regents,
528 U.S. 62 (2000)...........................................18

Lopez v. Monterey County,
525 U.S. 266 (1999)...........................................18

South Carolina v. Katzenbach,
383 U.S. 301 (1966)..................................... 8, 17

Tennessee v. Lane,
541 U.S. 509 (2004).............................................3

Turner Broad. Sys. Inc. v. FCC,
520 U.S. 180 (1997)................................ ...17, 19

Turner Broad. Sys. Inc. v. FCC,
512 U.S. 622 (1994)................................... 17, 19

Constitution:

U.S. Const, amend. XIV.........................................17

Statutes:

42 U.S.C. § 1973a................................................... 14



Ill

TABLE OF AUTHORITIES— Continued
Page

42 U.S.C. § 1973c..............................................3, 20

Legislative Materials'.

152 Cong. Rec. S7748 (July 18, 2006)................ 15

H.R. Rep. No. 109-478 (2006)...... 9, 11, 12, 13, 14

Reauthorizing the Voting Rights Act’s 
Temporary Provisions: Hearing on S.
2703 Before Subcomm. on Constitution,
Civil Rights and Property Rights of S.
Comm, on Judiciary, 109th Cong. 45 
(2006)................................................... 10, 13, 14, 16

Rule:

S. Ct. R. 37.6....................................... .....................1

Other Authorities:

ABA 2006 Report with Recommendation
(Policy adopted June 2006)..........................3, 4

ABA 2005 Report with Recommendation
#108 (Policy adopted August 2005).............2, 4

ABA 1981 Report with Recommendation
#105 (Policy adopted August 1981)................. 3

Letter From R. Alexander Acosta, Assis­
tant Attorney General, Department 
of Justice, to Mayor H. Bruce Buck- 
heister (Sept. 16, 2003) 1 0



IV

TABLE OF AUTHORITIES— Continued
Page

Letter From John R. Dunne, Assistant 
Attorney General, Department of 
Justice, to Cynthia Young Rougeou, 
Assistant Attorney General, State of 
Louisiana (Oct. 23, 1990)................................ 12

Letter From John R. Dunne, Assistant 
Attorney General, Department of 
Justice, to Secretary-Treasurer Rob­
bie Shirley (Dec. 23, 1991)............................... 12

Letter From Robert D. Evans, Director,
ABA Governmental Affairs Office, to 
House of Representatives (June 20,
2006)..................................................................... 5

Letter from Robert D. Evans, Director,
ABA Governmental Affairs Office, to 
House of Representatives (July 12,
2006)..............................................................5, 15

Letter From Robert D. Evans, Director,
ABA Governmental Affairs Office, to 
Senate (July 20, 2006).................................. 5, 9

Letter from Herbert E. Hoffman, Direc­
tor, ABA Governmental Relations Of­
fice, to Hon. Peter W. Rodino, House 
Judiciary Chairman (Oct. 5, 1981)................3

Letter From Bill Lann Lee, Acting Assis­
tant Attorney General, Department 
of Justice, to Benjamin W. Emerson 
(Oct. 27, 1999).................................................. 11



V

TABLE OF AUTHORITIES— Continued
Page

Letter From William Bradford Reynolds, 
Assistant Attorney General, Depart­
ment of Justice, to Ken W. Smith 
(July 8, 1988)....................................................12

Letter From J. Michael Wiggins, Acting 
Assistant Attorney General, Depart­
ment of Justice, to A1 Grieshaber Jr.
(Sept. 23, 2002)..........................................10, 11

Laughlin McDonald, The Case for Ex­
tending and Amending the Voting 
Rights Act: Voting Rights Litigation, 
1982-2006: A Report of the Voting 
Rights Project of the American Civil 
Liberties Union (Mar. 2006)............. 10, 11, 12

Protecting Minority Voters: The Voting 
Rights Act at Work, 1982-2005, Nat’l 
Comm’n on the Voting Rights Act 
(Feb. 2006)...........................................11, 13, 15



In The

Supreme Court of tlje Hmteb i§>tate3

No. 08-322

N o r th w e st  A u stin  M u n ic ipa l  
Ut ility  D istr ic t  N u m b e r  On e ,

Appellant,
v.

E ric  H. H o ld e r , Jr ., A tto r n e y  Ge n e r a l  of th e  U n ited  
States  of Am e r ic a , e t  a l .,

Appellees.

On Appeal from the United States District Court 
for the District of Columbia

BRIEF AMICUS CURIAE OF THE AMERICAN BAR 
ASSOCIATION IN SUPPORT OF APPELLEES

STATEMENT OF INTEREST1

The American Bar Association (“ABA”) is the larg­
est voluntary professional membership organization 
and the leading organization of legal professionals in 
the United States. The ABA’s more than 400,000 
members span all 50 states and other jurisdictions,

1 Pursuant to Supreme Court Rule 37.6, counsel for amicus 
certifies that no counsel for a party authored this brief in whole 
or in part, and no counsel or party made a monetary contribu­
tion intended to fund the preparation or submission of this 
brief. No person other than amicus, its members, or its counsel 
made such a monetary contribution. This brief is filed with the 
consent of all the parties.



2

and include attorneys in private law firms, corpora­
tions, non-profit organizations, government agencies, 
and prosecutorial and public defender offices, as well 
as judges, legislators, law professors, and law stu­
dents.2

As the national voice of the legal profession, the 
ABA has taken on a special responsibility for protect­
ing the rights guaranteed by the Constitution and 
fostering the rule of law. As an active voice in pro­
moting full and equal access to our nation’s electoral 
process, the ABA has adopted a number of policies 
opposing discrimination against minorities, including 
at the ballot box. See, e.g., ABA 2005 Report with 
Recommendation #108, Report at 1 & n.4 (Policy 
adopted August 2005).3 The ABA has also partici­
pated as amicus curiae before this Court in cases 
delineating the scope of Congress’s power under the

2 Neither this brief nor the decision to file it should be 
interpreted to reflect the view of any judicial member of the 
ABA. No inference should be drawn that any member of the 
Judicial Division Council has participated in the adoption or 
endorsement of the positions in this brief. This brief was not 
circulated to any member of the Judicial Division Council prior 
to its filing.

3 Available at http://www.abanet.org/leadership/2005/annual 
/dailyjournal/108.doc. The ABA’s House of Delegates (“HOD”) is 
the ABA’s policymaking body and is comprised of more than 
500 delegates. Reports with Recommendations may be submit­
ted to the HOD by ABA delegates representing states and 
territories, state and local bar associations, affiliated organiza­
tions, sections and divisions, ABA members and the Attorney 
General of the United States, among others. The full HOD 
votes on the Recommendations. Those Recommendations that 
are adopted become ABA policy. See ABA Leadership, House of 
Delegates, General Information, available at 
http://www.abanet.org/leadership/delegates.html.

http://www.abanet.org/leadership/2005/annual
http://www.abanet.org/leadership/delegates.html


3

Reconstruction Amendments, including Tennessee 
v. Lane, 541 U.S. 509 (2004), and City of Boerne 
v. Flores, 521 U.S. 507 (1997).

The ABA has a special interest in this case because 
it has long had an official policy of supporting the 
Voting Rights Act (the “Act” or the “VRA”), a critical 
piece of legislation that “has been called the most 
effective civil rights law ever enacted.” ABA 2006 
Report with Recommendation, Report at 1 (Policy 
adopted June 2006) (available from the ABA).4 More 
than 25 years ago, the ABA’s House of Delegates 
adopted a resolution supporting the 1982 extension 
of Section 5 of the VRA,5 emphasizing that that key 
provision has “not only enhanced the political pos­
ture of minority groups, but it has also advanced the 
very ideals that make our country’s governmental 
system unique in political history.” ABA 1981 Report 
with Recommendation #105, Report at 6 (Policy 
adopted August 1981) (available from the ABA). The 
ABA therefore called upon “Congress, the legal 
profession and all Americans * * * to continue this 
vital tool until there is no institutional practice in 
this country barring or discouraging citizens from 
fully exercising the right and responsibility of freely 
electing our public servants.” Letter from Herbert E. 
Hoffman, Director, ABA Governmental Relations

4 Because legislation reauthorizing the VRA was introduced 
in the United States House of Representatives on May 2, 2006 
and in the Senate on May 3, 2006, but the ABA HOD did not 
meet until August 2006, this Report with Recommendation was 
adopted as ABA policy in June 2006 by the ABA’s Board of 
Governors, acting pursuant to ABA by-laws, to permit the ABA 
to participate in the congressional debate.

5 42 U.S.C. § 1973c.



4

Office, to Hon. Peter W. Rodino, House Judiciary 
Chairman 2 (Oct. 5, 1981) (available from the ABA).

Twenty-five years later, the ABA repeated that 
same call when Section 5 came up for renewal once 
again. In 2005, the ABA House of Delegates resolved 
to support the 25-year extension of Section 5 that is 
now before the Court. The accompanying Report 
stated that “despite the progress that has been made 
since the passage of the Act, members of minority 
groups still face discrimination in exercising their 
right to vote.” ABA 2005 Report with Recommenda­
tion #108, Report at 1. As discussed below, this 
finding tracks the evidence that was before Congress 
when it decided to renew Section 5.

The ABA reaffirmed its policy and conclusions in 
2006, finding that Section 5 is one of the Act’s “most 
important and effective” provisions; that it, along 
with its companion provisions, “will continue to be 
important factors and safeguards in making avail­
able the right to vote to all segments of our popula­
tion”; and that it therefore “must be reauthorized.” 
ABA 2006 Report with Recommendation, Report at 1, 
4.

The ABA made its support for reauthorization clear 
to Congress as both houses were debating the legis­
lation now on review before this Court. In a letter 
sent to all members of the House of Representatives, 
the ABA stated that “ [t]he Voting Rights Act has 
been critical to the expansion of our democratic 
franchise to all eligible citizens” and that “reauthori­
zation would allow progress to continue through 
enhanced access to the political process by all citi­
zens, as well as by signaling a clear repudiation of 
discriminatory voting practices.” Letter from Robert



5

D. Evans, Director, ABA Governmental Affairs 
Office, to House of Representatives 1-2 (June 20, 
2006).6 In a letter to all members of the Senate, the 
ABA likewise explained that “[bjecause of the persis­
tence of discriminatory behavior in the election 
process,” Section 5 and the rest of the Act “remainf ] 
an essential tool in the struggle to preserve and 
protect voting rights for all Americans.” Letter from 
Robert D. Evans, Director, ABA Governmental 
Affairs Office, to Senate 2 (July 20, 2006) (“ABA July 
2006 Senate Letter”).7

The ABA’s views have not changed. The ABA 
firmly believes—and the evidence bears out—that 
difficult-to-remedy unconstitutional discrimination 
persists in the election process and that Section 5’s 
work accordingly is not complete. Without Section 5, 
the dedicated lawyers who seek to vindicate voting 
rights in this Nation would face an even more diffi­
cult time when challenging discriminatory practices. 
The Act, in short, continues to “provide critical 
protections” against discrimination in voting. Letter 
from Robert D. Evans, Director, ABA Governmental 
Affairs Office, to House of Representatives 1 (July 
12, 2006) (“ABA July 2006 House Letter”). The 
decision of the District Court should be affirmed.

6 Available at http://www.abanet.org/poladv/letters/elec-
tionlaw/0606201etter_vra_reauth_house.pdf.

7 Available at http://www.abanet.org/poladv/letters/elec-
tionlaw/0607201etter_vra_reauth_senate.pdf.

http://www.abanet.org/poladv/letters/elec-
http://www.abanet.org/poladv/letters/elec-


6

SUMMARY OF ARGUMENT

I. Appellant Northwest Austin Municipal Utility 
District Number One (“the Utility District”) is incor­
rect in asserting that “ [t]he record Congress amassed 
in 2006 * * * is not of the quality to demonstrate that 
§ 5 remains a valid exercise of Congress’s enforce­
ment powers.” App. Br. 2. The congressional record 
that supported Section 5’s renewal is replete with 
evidence, both statistical and in the form of first­
hand accounts, demonstrating the necessary predi­
cates for Section 5—namely, that unconstitutional 
voting discrimination continues in the covered juris­
dictions and that Section 5 is an effective tool to 
combat it. The legislative record is far more robust 
than the Utility District admits and is more than 
sufficient, under this Court’s precedents, to justify 
Section 5’s reauthorization.

II. The Utility District is also incorrect in its asser­
tion that Section 5 is no longer a “congruent and 
proportional” remedy under Boerne—an assertion it 
bases in large part on the claim that Section 2 offers 
sufficient tools to attack the sorts of discrimination 
extant in covered jurisdictions. First, the argument 
wrongly assumes that Boerne somehow displaces the 
standard of review this Court has employed in re­
peatedly affirming Section 5’s constitutionality. See 
NAACP Br. 23-26. Second, it contradicts Congress’ 
factual findings as to Section 2. But even setting 
aside these problems, the argument fails because 
contrary to the Utility District’s implicit suggestion, 
Boerne does not create a least-restrictive-means 
requirement. Instead, it guards against legislative 
attempts to expand constitutional rights by ensuring 
that Congress’s prophylactic legislation (i) actually



7

targets demonstrable, unconstitutional state action 
and (ii) does not invalidate such a broad swath of 
state and local actions that it can no longer “be 
understood as responsive to, or designed to prevent, 
unconstitutional behavior.” Boerne, 521 U.S. at 531- 
532. Section 5 meets both criteria. To the extent 
Boerne applies to this case, it compels affirmance.

ARGUMENT

I. THE RECORD JUSTIFIES REAUTHOR­
IZATION.

The Utility District’s Section 5 argument relies on 
the premise that contemporary discrimination “of the 
type that justified § 5 is rare, if it exists at all, and 
cannot justify renewing § 5 for yet another genera­
tion.” App. Br. 27. The record before Congress in 
2006, however, was replete with evidence that pre­
cisely the type of behavior that justifies Section 5— 
unconstitutional voting discrimination—persists 
across the covered jurisdictions and would be even 
more prevalent in Section 5’s absence. The robust 
legislative record is more than sufficient, under this 
Court’s precedents, to justify Section 5’s reauthoriza­
tion.

1. The Utility District can argue that evidence 
supporting Section 5’s reauthorization “is rare, if it 
exists at all,” App. Br. 27, only by asserting that 
there must be a showing of “a systematic pattern of 
covered jurisdictions recently engaging in concerted 
efforts to game the system to the disadvantage of 
minorities by acting preemptively to impose new 
barriers to voting once old barriers are judicially 
deemed unenforceable.” App. Br. 40-41.



8

As an initial matter, the record before Congress 
contained just such a showing: It included extensive 
evidence that particular jurisdictions have received 
multiple Section 5 objections, and in some cases have 
faced a combination of Section 5 objections and 
Section 2 lawsuits, since 1982. See Br. of Louis 
Intervenors 15-19, 47-51. But in any event, the 
Utility District’s narrow understanding of Section 5 
is not correct. As the Government has pointed out: 
“Although this Court recognized in Katzenbach that 
‘some’ covered States had engaged in such [games­
manship], the Court repeatedly stated that it was 
the cumbersome nature of case-by-case adjudication 
of voting cases” that prompted Congress to adopt the 
preclearance mechanism and that gamesmanship 
was “only one aspect of the larger failure of tradi­
tional legislative bans on discrimination in voting.” 
U.S. Mot. to Affirm 18-19 (quoting and citing South 
Carolina v. Katzenbach, 383 U.S. 301, 313-314, 327- 
328, 335 (1966)) (internal citations omitted). See also 
Boerne, 521 U.S. at 526 (explaining that the VRA’s 
“new, unprecedented remedies,” including Section 5, 
“were deemed necessary given the ineffectiveness of 
the existing voting rights laws and the slow, costly 
character of case-by-case litigation”) (citing Katzen­
bach, 383 U.S. at 313-315, 328).

The validity of Section 5’s reenactment thus does 
not hinge on Congress being able to point to a “sys­
tematic pattern of covered jurisdictions * * * 
gam[ing] the system to the disadvantage of minori­
ties.” App. Br. 40. Instead, Congress has “wide 
latitude” in determining “measures that remedy or 
prevent unconstitutional actions.” Boerne, 521 U.S. 
at 519. Compare id. at 528 (stating that the “ration­
ales” for upholding Section 4(e) of the VRA “rested on



9

unconstitutional discrimination * * * and Congress’ 
reasonable attempt to combat it”). The record com­
piled by Congress is replete with evidence both that 
“unconstitutional actions” persist and that Section 5 
is an important tool to “remedy or prevent” them.

a. Intentional Discrimination. Congress explicitly 
found, in re-enacting Section 5, that hundreds of 
voting-rule changes sought by covered jurisdictions 
between 1982 and 2006 “were calculated decisions to 
keep minority voters from fully participating in the 
political process.” Those calculated and intentional 
decisions—had the Attorney General not interceded 
under the authority of the VRA—would have uncon­
stitutionally deprived citizens of their right to vote. 
H.R. Rep. No. 109-478 at 21 (2006) (“2006 House 
Report”); see also ABA July 2006 Senate Letter 
(“Because of the persistence of discriminatory behav­
ior in the election process, the Act remains an essen­
tial tool in the struggle to preserve and protect 
voting rights for all Americans.”); Bartlett v. Strick­
land, — S. Ct. 2009 WL 578634, at *16 (U.S. Mar. 
9, 2009) (op. of Kennedy, J.) (observing that “racial 
discrimination and racially polarized voting are not 
ancient history” and that “ [m]uch remains to be done 
to ensure that citizens of all races have equal oppor­
tunity to share and participate in our democratic 
processes and traditions”). Congress’s finding on this 
score is amply supported by the record it amassed:

• In 2005, the Department of Justice “blocked a 
redistricting plan in the Town of Delhi, Louisi­
ana, after finding it was motivated by intent to 
retrogress [and] would have eliminated an Afri­
can-American opportunity district.” Reauthoriz­
ing the Voting Rights Act’s Temporary Provi-



1 0

sions: Hearing on S. 2703 Before Subcomm. on 
Constitution, Civil Rights and Property Rights 
of S. Comm, on Judiciary, 109th Cong. 45 (2006) 
(“Senate Hearing’) (Response of Debo P. Adeg- 
bile).

• In 2003, the Department of Justice blocked a 
proposed municipal annexation in the Town of 
North, South Carolina, finding that the town in­
tentionally made a habit of allowing white peti­
tioners to annex their property to the town— 
and thus increase the white voting base—while 
“largely ignoring]” the requests of black resi­
dents to do the same. Senate Hearing at 60 (Re­
sponse of Debo P. Adegbile) (citing Letter From 
R. Alexander Acosta, Assistant Attorney Gen­
eral, Department of Justice, to Mayor H. Bruce 
Buckheister (Sept. 16, 2003)). •

• Following the 2000 census, the Department of 
Justice blocked the City of Albany, Georgia’s re­
districting plan, finding that the plan intention­
ally split what should have been a majority- 
black ward. The Department’s letter of objec­
tion concluded it was “implicit” that “the pro­
posed plan was designed with the purpose to 
limit and retrogress the increased black voting 
strength in Ward 4, as well as in the city as a 
whole.” Laughlin McDonald, The Case for Ex­
tending and Amending the Voting Rights Act: 
Voting Rights Litigation, 1982-2006: A Report 
of the Voting Rights Project of the American 
Civil Liberties Union 5 (Mar. 2006) (“McDonald 
Report”) (quoting Letter From J. Michael Wig­
gins, Acting Assistant Attorney General, De-



1 1

partment of Justice, to A1 Grieshaber Jr. (Sept. 
23, 2002)) (quotation marks omitted).8

• In 1999, officials in Dinwiddie County, Virginia 
moved a polling place from a hunt club with a 
large black membership to a church located as 
far as possible from the precinct’s black popula­
tion center. The Department of Justice objected 
to the change, finding that the polling place was 
moved for discriminatory reasons. 152 Cong. 
Rec. S7748 (July 18, 2006) (statement of Sen. 
Leahy) (citing Letter From Bill Lann Lee, Act­
ing Assistant Attorney General, Department of 
Justice, to Benjamin W. Emerson (Oct. 27, 
1999)).

• In 1992, white officials in black-majority Hale 
County, Alabama physically held polling-place 
doors closed to prevent black voters from enter­
ing the precinct to cast votes. A black legislator 
who managed to pull one of the doors open to let 
voters in was arrested. Protecting Minority Vot­
ers: The Voting Rights Act at Work, 1982-2005, 
Nat’l Comm’n on the Voting Rights Act 62-63 
(Feb. 2006) (“NCVRA Report”).

• In 1991, the Police Jury in Concordia Parish, 
Louisiana announced that it would reduce its 
size from nine members to seven, thereby elimi­
nating a black-majority district. The Depart­
ment of Justice rejected the change, finding the 
locality’s cost-saving justification pretextual and

8 The McDonald Report and the other reports cited in this 
section were submitted into the record during the congressional 
hearings on Section 5’s re-enactment. See 2006 House Report at 
21 n.48; id. at 38 n.82.



1 2

noting that the parish had seen no need to save 
money until an influx of black residents 
“flipped” the district in question from majority- 
white to majority-black. 2006 House Report at 
23 (citing Letter From John R. Dunne, Assistant 
Attorney General, Department of Justice, to 
Secretary-Treasurer Robbie Shirley (Dec. 23, 
1991)).

• In 1990, the City of Monroe, Louisiana at­
tempted to annex white suburban wards to its 
city court jurisdiction. The Department of Jus­
tice objected, noting that the wards in question 
had been eligible for annexation since 1970 but 
that there had been no interest in annexing 
them until just after the first-ever black candi­
date ran for city court. 2006 House Report at 23 
(citing Letter From John R. Dunne, Assistant 
Attorney General, Department of Justice, to 
Cynthia Young Rougeou, Assistant Attorney 
General, State of Louisiana (Oct. 23, 1990)). •

• In 1988, the Department of Justice rejected a 
Lumber City, Georgia ordinance that contained 
certain majority-vote and numbered-post re­
quirements for city elections. The Department 
found that the requirements had blocked the 
election of a black candidate and that they were 
“tainted, at least in part, by a proscribed pur­
pose.” McDonald Report at 434-435 (quoting 
Letter From William Bradford Reynolds, Assis­
tant Attorney General, Department of Justice, 
to Ken W. Smith (July 8, 1988)) (quotation 
marks omitted).

These are far from the only examples of post-1982 
intentional discrimination in the record before Con-



13

gress. On the contrary, as the Government has 
noted, “[between 1980 and 2000, the Attorney 
General interposed 421 objections based wholly or 
partially on discriminatory intent.” U.S. Mot. to 
Affirm 21 (citing J.S. App. 76-77). Compare Boerne, 
521 U.S. at 530 (“RFRA’s legislative record lacks 
examples of modern instances of generally applicable 
laws passed because of religious bigotry.”).

Furthermore, the witnesses who appeared before 
Congress testified that intentional discrimination is 
still a disturbingly widespread and frequent occur­
rence—a finding Congress adopted, as it was entitled 
to do. See 2006 House Report at 21. Debo P. Adeg- 
bile, Associate Director of Litigation for the NAACP 
Legal Defense and Educational Fund, Inc., testified 
that “the congressional record is replete with exam­
ples of continuing voting discrimination against 
racial minorities in the covered jurisdictions” and 
that a “surprisingly significant” number of the post- 
1982 objection letters issued by the Department of 
Justice involve findings of intentional discrimination. 
Senate Hearing at 52, 73. As to Louisiana specifi­
cally, Adegbile testified that “ [significant * * * 
voting changes adopted with retrogressive purpose” 
continue to be “commonplace.” Id. at 130. Likewise, 
the National Commission on the Voting Rights Act 
(“NCVRA”) concluded that “efforts to suppress the 
minority vote, while not as systematic and pervasive 
as those of the pre-Act South, are still encountered in 
every election cycle across the country.” NCVRA 
Report at 7.

The record also suggests that the numerical tally of 
intentional-discrimination objection letters and court 
findings understates the actual prevalence of uncon­



14

stitutional discrimination. As appellees have pointed 
out, since 1982, the Attorney General and the D.C. 
District Court have interposed more than 750 Sec­
tion 5 objections to more than 2,400 proposed voting 
changes based on findings that those changes were 
discriminatory; an additional 1,100 changes have 
been abandoned or modified in response to more- 
information-request letters; and plaintiffs in covered 
states have been successful in more than 650 law­
suits under Section 2 of the Act, 42 U.S.C. § 1973a. 
U.S. Mot. to Affirm 15-16.

The Utility District apparently would disregard 
this evidence as insufficiently reflective of inten­
tional discrimination. E.g., App. Br. 53. However, as 
to requests for more information, the evidence dem­
onstrated, and Congress affirmatively found, that a 
locality’s withdrawal of a proposed change often 
signals that the locality had an improper motive in 
the first place. 2006 House Report at 40-41. Fur­
thermore, there was record evidence suggesting that 
many of the cases that resulted in discriminatory- 
effect findings from the Department of Justice and 
the courts may also have involved discriminatory 
intent. As Professor Karlan explained in testimony 
before the Senate: “One consequence of the 1982
amendment of section 2 is that plaintiffs are rarely 
called upon to prove, and courts are rarely called 
upon to find, that a defendant jurisdiction has en­
gaged in purposeful racial discrimination that would 
violate the Constitution as well. This is not to say 
that such purposeful discrimination does not exist.” 
Senate Hearing at 173 (testimony of Prof. Pamela S. 
Karlan).



15

b. Efficacy of Section 5. Congress likewise com­
piled extensive record evidence demonstrating that 
Section 5 is an effective—and irreplaceable—tool to 
remedy and prevent persistent unconstitutional 
voting discrimination. In addition to the pure num­
bers of objection letters and withdrawn proposals 
recounted above, the evidence demonstrated that 
“the deterrent effect of Section 5 is substantial.” 
NCVRA Report at 57; see also 2006 House Report at 
24 (adopting NCVRA finding). After holding 10 
hearings across the nation and hearing from 100 
witnesses, the NCVRA recounted evidence that 
“ [o] nee officials in covered jurisdictions become 
aware of the logic of preclearance, they tend to 
understand that submitting discriminatory changes 
is a waste of taxpayer time and money and interferes 
with their own timetables, because the chances are 
good that an objection will result.” NCVRA Report at 
57\ accord Senate Hearing at 169-170 (testimony of 
Prof. Karlan) (concluding that Section 5 performs a 
deterrent function and that the deterrent function is 
“especially important with respect to changes at the 
local level”).

The evidence also demonstrated that Section 5’s 
deterrent effect continues to play a “critical role in 
minority citizens’ political integration” because “the 
political gains minority citizens have achieved since 
the passage of the Act are sufficiently recent and the 
incentives for officials to ignore the interests of 
minority voters are sufficiently attractive that back­
sliding would occur in the absence of the Act’s sub­
stantive and procedural protections.” Senate Hear­
ing at 168-169 (testimony of Prof. Karlan); see also 
ABA July 2006 House Letter 2 (stating that the Act’s 
“special remedial provisions have enabled the federal



16

government to enforce the prohibition on discrimina­
tory voting practices and mechanisms. These provi­
sions have been very effective at enhancing the 
democratic principles that form the foundation of our 
nation.”).

Nor was the evidence before Congress supportive of 
the Utility District’s assertion that Section 5 is no 
longer necessary because “[t]he voting-rights prob­
lems Congress identified in the 2006 record * * * are 
quickly and fully remedied by § 2 and other substan­
tive prohibitions.” App. Br. 27. To the contrary, the 
record demonstrated that private lawsuits are often 
cumbersome and unable to prevent the more perva­
sive forms of second-generation voting discrimina­
tion: last-minute attempts to move polling booths,
eleventh-hour attempts to delay elections, and the 
like. As the General Counsel of the North Carolina 
State Board of Elections testified: “Section 2 cases 
are complex and can take several years to fully 
litigate at the trial level, exclusive of any appeals. In 
the meantime, the discriminatory voting change is 
put into effect, which would not happen under Sec­
tion 5.” Senate Hearing at 121 (testimony of General 
Counsel Don Wright). Wright explained that even if 
the Section 2 litigation is ultimately successful, “the 
damage is often already done: elections may have
been held under an unlawful plan, providing candi­
dates elected under that plan an advantage in terms 
of incumbency and fundraising under any remedial 
plan that might be adopted.” Id.; see also Br. of 
Louis Intervenors 10-11 (cataloguing additional 
evidence).

2. Rather than address the entirety of the record 
before Congress, the Utility District focuses on the



17

evidence of gamesmanship. App. Br. 43-54. But that 
approach ignores the broader purpose of Section 5 
that this Court acknowledged in Katzenbach. See 
383 U.S. at 314, 327-328 (discussing limitations of 
case-by-case litigation). And to the extent the Utility 
District contests the evidence before Congress— 
arguing, for instance, that Section 2 is up to the task 
currently performed by Section 5—its argument 
would require this Court to ignore the extensive 
record from which Congress concluded that Section 5 
is essential for both confronting and deterring a 
myriad of unconstitutional voting discrimination 
attempts. In short, the Utility District forgets that 
this Court “owe[s] Congress’ findings deference in 
part because the institution ‘is far better equipped 
than the judiciary to amass and evaluate the vast 
amounts of data bearing upon’ legislative questions.” 
Turner Broad. Sys. Inc. v. FCC, 520 U.S. 180, 195 
(1997) (“Turner IF) (quoting Turner Broad. Sys. Inc. 
v. FCC, 512 U.S. 622, 665-666 (1994) (“Turner F)).

II. THE UTILITY DISTRICT OVERREADS 
B O E R N E  AND IGNORES THE LIMITED  
NATURE OF THE SECTION 5 REMEDY.

The Utility District bases its argument for Section 
5’s unconstitutionality on Boerne’s “congruence and 
proportionality” test, but the argument is not sup­
ported by either Boerne’s holding or its animating 
logic.

1. The Utility District contends, in effect, that 
(i) Boerne imposes on Congress a strict scrutiny-style 
least-restrictive-means requirement and (ii) Section 
5 does not meet this standard because, among other 
things, Section 2 suffices to address the voting- 
discrimination problems identified in the record.



18

See, e.g., App. Br. 36-37. Besides being counter to 
the evidence presented to Congress, see supra at 16— 
and besides incorrectly assuming that Boerne some­
how altered the deferential framework for Section 5 
review that this Court has employed for decades9— 
this argument attributes to Boerne a test that the 
case did not announce. Indeed, the argument en­
tirely disregards Boerne’s recognition that Congress 
has the power to “ prohibit changes that have a 
discriminatory impact’ ” as a way to reach demon­
strable intentional discrimination—a power that 
cannot be reconciled with a least-restrictive-means 
requirement. 521 U.S. at 532 (quoting City of Rome 
v. United States, 446 U.S. 156, 177 (1980)); accord 
Kimel v. Florida Bd. of Regents, 528 U.S. 62, 81 
(2000) (reaffirming Congress’ power under Section 5 
of the Fourteenth Amendment to enforce a constitu­
tional right by “prohibiting a somewhat broader 
swath of conduct” than is forbidden by the Constitu­
tion).

The Boerne test is, instead, a mechanism to ensure 
that remedial legislation does not “become substan­
tive in operation and effect” by decreeing a different 
or more fulsome right than the one guaranteed by 
the Constitution. 521 U.S. at 519-520. To that end, 
the Boerne Court struck down the Religious Freedom 
Restoration Act (“RFRA”) because the statute ex­
pressly targeted a type of state action not forbidden 
by the Fourteenth Amendment, and it did so based 
on a legislative record devoid of evidence of unconsti­

9 See NAACP Br. 23-26; see also Lopez v. Monterey County, 
525 U.S. 266, 283 (1999); City o f Rome v. United States, 446 
U.S. 156, 177 (1980); Katzenbach, 383 U.S. at 326.



19

tutional state action in need of a remedy. Id. at 530- 
532.

2. This case simply does not trigger the concerns 
that animated Boerne. Congress found in reauthoriz­
ing Section 5 of the VRA that localities continue to 
enact unconstitutional—not just undesirable—voting 
rules. See supra at 9-14. Furthermore, Congress 
found that Section 5 has been used to block hundreds 
of voting laws and rules that were motivated by 
racial discrimination. J.S. App. 77. A claim that 
Section 5 does not target unconstitutional behavior, 
see App. Br. 42-56, disregards the substantial record 
compiled by Congress. As this Court has held, “ [t]he 
Constitution gives to Congress the role of weighing 
conflicting evidence in the legislative process.” 
Turner II, 520 U.S. at 199; see id. at 195 (court’s sole 
obligation in reviewing constitutionality of a statute 
is “ ‘to assure that, in formulating its judgments, 
Congress has drawn reasonable inferences based on 
substantial evidence,’ ” with substantiality measured 
“by a standard more deferential than we accord to 
judgments of an administrative agency”) (quoting 
Turner I, 512 U.S. at 665-666).

3. Nor can the impact of Section 5’s preclearance 
requirement be fairly compared to the statute struck 
down in Boerne. Indeed, Boerne itself contrasted the 
VRA (including Section 5) with RFRA and held up 
the former as a model of congruent, proportional 
legislation. See 521 U.S. at 526. Boerne highlighted 
the VRA’s focus on a single class of state laws, its 
expiration date, and its geographical restrictions; all 
were features absent from RFRA. See id. at 525-526.

An additional and important difference between 
RFRA and Section 5 of the VRA must be noted:



2 0

Section 5 does not strike down the vast majority of 
laws within its scope; it instead merely delays their 
enactment for a period of weeks, giving the Attorney 
General time to identify those few that raise con­
cerns of discrimination. See 42 U.S.C. § 1973c(a) 
(creating 60-day review period). It is inaccurate, in 
other words, for the Utility District to assert that 
Section 5 “preempts every change related to voting 
* * * in covered jurisdictions.” App. Br. 38 (emphasis 
deleted). Section 5 affects every change related to 
voting; it preempts a small proportion of those pro­
posed. This is a crucial distinction from Boerne, 
which addressed itself to a statute that “displacfed]  
laws and prohibited] official actions of almost every 
description.” 521 U.S. at 532 (emphases added).

Boerne, in short, was a case about the categorical 
prohibition of constitutional behavior; this is a case 
about contingent delay aimed at preventing uncon­
stitutional behavior. To the extent it applies here, 
Boerne compels affirmance.

For the foregoing reasons, the Court should affirm 
the decision below.

CONCLUSION

Respectfully submitted,

Of Coun sel :
Christopher  T. Handm an  
D ominic F. Perella

H. Thom as W e lls , Jr .
Counsel of Record 

President
Am erican  Bar  A ssociation  
321 North Clark Street 
Chicago, Illinois 60654 
(312) 988-5000

Counsel for Amicus Curiae American Bar Association